Privacy Issues in the Workplace

b. Duty to Bargain Employers will almost always have a duty to bargain with the exclusive representative of their employees before implementing a drug or alcohol testing program since it affects the terms and conditions of employment. The duty of local agencies in California to bargain with representatives of their employees is governed by the Meyers-Milias-Brown Act (MMBA). 287 In Holliday v. City of Modesto , the court held that employee drug testing constituted a condition of employment, and was subject to negotiation with the union under the MMBA. 288 In Holliday , the City of Modesto fire chief ordered a firefighter to submit to a drug test based on information that the firefighter possessed marijuana. While the Fire Department had a rule prohibiting the possession or use of illegal drugs or narcotics, the Department did not have a negotiated drug testing policy. Therefore, the court held that the fire chief’s order that the firefighter submit to a drug test was unlawful and in violation of the MMBA. B. DOT-R EGULATED D RUG AND A LCOHOL T ESTING Every employer in the United States who employs drivers of “commercial motor vehicles” or who operates a transit system in an urbanized area must be in compliance with the United States Department of Transportation regulations (implementing the Federal Omnibus Transportation Employee Testing Act of 1991). These regulations require that the employer adopt a drug and alcohol testing policy, in accordance with the regulations, for employees in “safety-sensitive functions,” e.g., employees who drive vehicles with a gross vehicle weight of at least 26,001 pounds, or vehicles designed to transport 16 or more passengers, or vehicles which transport hazardous materials. Most relevant to the privacy issues discussed in this workbook is the regulation that requires an employer to request particular drug and alcohol testing records that were made during the two years prior to the date that a new applicant or a current employee first requests transfer to a safety sensitive job. 289 The following is a summary of the requirements of this regulation. 1. R ECORDS C HECK R EQUIREMENT The DOT regulation codified at Title 49 Code of Federal Regulations section 40.25 requires an employer to request particular drug and alcohol testing records that were made during the two years prior to the date of: 1) a new applicant’s application for a safety-sensitive job; or 2) a request of a current employee to transfer to his or her first safety-sensitive job with that employer. 290 If the applicant or employee refuses to provide a written consent for this information, the employer cannot permit that person to perform safety-sensitive functions. 291 In light of the Holliday case, local government employers are prohibited from testing employees for drugs and/or alcohol without a negotiated policy.

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